Opinion
Index No. 156829/2021 MOTION SEQ. No. 003
08-24-2022
JIDE ZEITLIN, Plaintiff, v. WILLIAM COHAN, Defendant.
Unpublished Opinion
MOTION DATE 12/14/2021
PRESENT: HON. WILLIAM PERRY Justice
DECISION + ORDER ON MOTION
WILLIAM PERRY, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 003) 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 68 were read on this motion to/for DISMISS .
Plaintiff Jide Zeitlin brings this defamation action against William Cohan, a journalist for ProPublica, for the publication of a July 22, 2020 article titled "The Bizarre Fall of the CEO of Coach and Kate Spade's Parent Company" ("the article"). In motion sequence 003, Cohan moves to dismiss the complaint on the grounds that Plaintiff is unable to meet the heightened pleading standard under New York's anti-SLAPP (strategic lawsuits against public participation) law, as the article addresses an issue of public concern which requires Plaintiff to establish by clear and convincing evidence that the article was published with actual malice. (NYSCEF Doc No. 22, Ms003 Memo, at 7.)
Background
Plaintiff is a businessman who served as the CEO of Tapestry, Inc., the parent company of certain fashion brands like Coach and Kate Spade, from 2019 to his resignation on July 21, 2020, the day before the article's publication. Many of the relevant facts underlying this case, however, pertain to Plaintiff's pastime as a photographer using the pseudonym "James Greene" and the extra-marital relationship he had with a woman he photographed, Gretchen Raymond, from January to October 2007.
As set forth in the complaint, Plaintiff alleges that Cohan initially approached him for an interview in 2019, to write a "comprehensive piece about Mr. Zeitlin's life's journey from Nigeria, to Wall Street, and ultimately to Tapestry" which would be published in Air Mail. (NYSCEF Doc No. 2, Complaint, at ¶ 54.) Plaintiff alleges that Cohan, however, had sought the interview with the intention of focusing on Plaintiff's relationship with Ms. Raymond, and that, during the interview process, Cohan shared Ms. Raymond's false allegations with Tapestry, which then forced Plaintiff to resign. (Id. at ¶¶ 63-69.)
The Article
The article summarizes Plaintiff's early life and career, culminating in his September 24, 2009 nomination to the post of the U.S. Ambassador for UN Management and Reform by President Obama. (NYSCEF Doc No. 3, Article, at 1-6.) On December 9, 2009, the day after the Senate Foreign Relations Committee recommended that the Senate approve his nomination, Gretchen Raymond emailed Max Gigle, a staff assistant to Connecticut Senator Chris Dodd, stating that Plaintiff "has put me and my family through hell." (Id. at 7.)
The article recounts the allegations contained in Raymond's 2009 email (the "email"); that in 2007, Raymond was working as a fitness model and responded to a Craigslist ad titled "Fit yes, experience not necessary" posted by photographer "James Greene". (Id.) The two began a correspondence, photoshoots were arranged, and the two eventually became lovers after Plaintiff "confessed to her that he had been living a double life." (Id. at 8.)
Although Plaintiff ended the relationship in October 2007, Raymond's husband discovered its existence and revealed his discovery to Plaintiff's wife. (Id. at 9.) The email states that Raymond had a brick thrown through her car window, seemingly in retaliation for the affair.
In further researching Plaintiff's photography career, Raymond and her husband learned that the "Sohophoto studio" used by Plaintiff was actually an apartment directly adjacent to his familial residence, where he resided with his wife and children. They also found seven models, described as "young women," photographed by Plaintiff in "demonstrably sexual poses, many lying on a bed in skimpy lingerie," including Tamara Williams, who "said she was over 18 when she was photographed topless on a bed in Zeitlin's SoHo studio around 2005, 'but that nothing bad transpired.'" (Id. at 9-10.)
The article states that Raymond "struck some pay dirt when Josh Rogin, a reporter at The Cable- a blog of Foreign Policy magazine- became interested in her claims[.]" (Id. at 10.) Rogin broke the news that Plaintiff's nomination to the UN had been withdrawn after "rumors swirled about his overall character and elements of identity fraud." (Id.)
The article concludes with Cohan alleging that Plaintiff was "alternately evasive or dismissive" of his questions regarding the withdrawal of his nomination and that he "denied everything." (Id. at 11.) Plaintiff allegedly stated that he was asked about his relationship with Raymond during the senate hearing (which Cohan notes is untrue), that he was "collateral damage in a GOP plot to wound Obama's foreign policy team," and, as proof of the falsity of Raymond's claims, that he had been offered the "bigger role" of undersecretary of the Treasury in 2015 (although Cohan notes that he was unable to confirm this after reaching out to multiple sources).
Plaintiff commenced this action on July 21, 2020, alleging that the article is "patently false, defamatory, highly damaging," and relies upon a single source, Ms. Raymond, "an incensed woman who was brokenhearted after [Plaintiff] ended a brief, wholly consensual relationship that began and ended nearly fourteen years ago." (Complaint at ¶ 1.)
Plaintiff sets forth three causes of action for defamation per se against Cohan, each based on different statements contained in the article: 1) that Plaintiff "used deception to lure a woman [Ms. Raymond] into an unwanted romantic relationship"; 2) that Plaintiff "stalked, harassed, and threatened Ms. Raymond," as evidenced by her 2009 email (which was included in the article via hyperlink); and 3) that Plaintiff "engaged in pedophilia and production of child pornography," also evidenced by the same email. (Id. at ¶¶ 86, 107, 127.)
In motion sequence 003, Cohan moves to dismiss the complaint on the grounds that Plaintiff is unable to meet the heightened pleading standard under New York's anti-SLAPP law, as the article addresses an issue of public concern, which requires Plaintiff to establish by clear and convincing evidence that the article was published with actual malice. (NYSCEF Doc No. 22, Ms003 Memo, at 7.) Cohan also argues that he cannot be found liable for the republication or summarization of Ms. Raymond's 2009 email, pursuant to New York Civil Rights Law § 74, because the email was part of Plaintiff's congressional nomination hearing. (Id. at 18-21.) Finally, Cohan argues that the statements underlying Plaintiff's first cause of action for defamation, that Plaintiff "used deception to lure a woman into an unwanted romantic relationship," are substantially true, and were first published in 2009 by another reporter, Josh Rogin, in The Cable, entitling Cohan to a qualified privilege of republication. (Id. at 21-24.)
In opposition, Plaintiff argues that the statements are not subject to the anti-SLAPP law because they do not relate to a matter of "public concern," but that, in any event, he does meet the actual malice standard. (NYSCEF Doc No. 50, Opposition, at 5.) Plaintiff also argues that Cohan's republication defense pertaining to the 2009 email is meritless because the email was not an official part of the proceeding, but rather, was sent the day after the proceeding had concluded (id. at 5-6), and that Plaintiff's first cause of action is well pled (id. at 19-21).
Discussion
On a pre-answer motion to dismiss a complaint for failure to state a cause of action, pursuant to CPLR 3211 [a] [7], "the court should accept as true the facts alleged in the complaint, accord plaintiff the benefit of every possible inference, and only determine whether the facts, as alleged, fit within any cognizable legal theory." (Frank v DaimlerChrysler Corp., 292 A.D.2d 118, 121, [1st Dept 2002].) However, "factual allegations that do not state a viable cause of action, that consist of bare legal conclusions, or that are inherently incredible or clearly contradicted by documentary evidence are not entitled to such consideration." (Skillgames, LLC v Brody, 1 A.D.3d 247, 250 [1st Dept 2003].)
Additionally, CPLR 3211 [g] provides that in cases involving the public interest, as defined by Civil Rights Law § 76-a, where a defendant moves to dismiss pursuant to CPLR 3211 [a] [7], "the burden is upon the plaintiff to establish that its claim has the requisite substantial basis." (Duane Reade, Inc. v Clark, 2 Misc.3d 1007(A), at *4, 2004 WL 690191 [Sup Ct, NY County 2004].) "In order to avoid dismissal of its SLAPP suit complaint, plaintiff must establish by clear and convincing evidence a 'substantial basis' in fact and law for its claim. The Legislature viewed 'substantial' as a more stringent standard than the 'reasonable' standard that would otherwise apply." (Id., quoting Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3211:73.)
Anti-SLAPP
The anti-SLAPP law, as amended on November 10, 2020 and codified at Civil Rights Law § 76-a[1] ["Actions involving public petition and participation; when actual malice to be proven"], provides, in pertinent part, that:
Although neither party raises the question of the applicability of the November 10, 2020 amendment, the court notes that it does apply, based on this action's commencement date of July 21, 2021, despite the fact that the article was published on July 22, 2020. (See Gottwald v Sebert, 203 A.D.3d 488 [1st Dept, Mar. 10, 2022] [holding that the amendment does not apply retroactively to "pending claims"]; Goldberg v Urbach, 2022 WL 1285452, at *1 [Sup Ct, Richmond County, Mar. 14, 2022] [holding that the amendment does not apply to defamation action commenced August 26, 2020, before the amendment was enacted].)
(a) An "action involving public petition and participation" is a claim based upon:
(1) any communication in a place open to the public or a public forum in connection with an issue of public interest; or
(2) any other lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public interest, or in furtherance of the exercise of the constitutional right of petition.
(d) "Public interest" shall be construed broadly, and shall mean any subject other than a purely private matter.
2. In an action involving public petition and participation, damages may only be recovered if the plaintiff, in addition to all other necessary elements, shall have established by clear and convincing evidence that any communication which gives rise to the action was made with knowledge of its falsity or with reckless disregard of whether it was false, where the truth or falsity of such communication is material to the cause of action at issue.
Civil Rights Law § 70-a[1][a] ["Actions involving public petition and participation; recovery of damages"] provides that a defendant "shall" recover costs and attorney's fees upon a demonstration "that the action involving public petition and participation was commenced or continued without a substantial basis in fact and law and could not be supported by a substantial argument for the extension, modification or reversal of existing law[.]"
The court finds that Plaintiff's claims are subject to the anti-SLAPP law, as they are "communication[s] in a place open to the public or a public forum in connection with an issue of public interest[.]" (Civil Rights Law § 76-a[1][a][1].) "New York courts broadly interpret what constitutes matters of public concern" and have found that statements about a relationship that touch on topics of "sexual impropriety and power dynamics in the music industry during the advent of the #MeToo movement" "[are] indisputably an issue of public interest." (Aristocrat Plastic Surgery, P.C. v Silva, 206 A.D.3d 26, 30-31 [1st Dept, May 19, 2022], citing Coleman v Grand, 523 F.Supp 3d 244, 259 [ED NY 2021]; see also Isaly v Garde, 2022 WL 2669242, at *5 [Sup Ct, NY County, July 11, 2022] [finding that articles containing accusations of sexual harassment pertained to "issue of public interest"]; Parker v Simmons, 2021 WL 4891347 [Sup Ct, NY County 2021] [same].)
As such, Plaintiff is required to meet the higher pleading standard of establishing by "clear and convincing evidence" that his causes of action have "a substantial basis in law" (CPLR 3211[g]), i.e., that the article was published with "'actual malice'--- that is, with knowledge that it was false or with reckless disregard of whether it was false or not." (Great Wall Med. P.C. v Levine, 74 Misc.3d 1224[A], at *2 [Sup Ct, NY County, Mar. 8, 2022]; Sackler v American Broadcasting Companies, Inc., 71 Misc.3d 693, 700 [Sup Ct, NY County 2021].) Here, Plaintiff's allegations of actual malice are entirely conclusory (Complaint at ¶¶ 90-94; 111-14; 131-34), unsupported by "clear and convincing evidence," and thus insufficient to meet his required burden.
Plaintiff incorrectly argues that he is not yet required to establish by "clear and convincing evidence" that the article was published with actual malice, as "that is the standard applicable to anti-SLAPP claims at summary judgment, not the motion-to-dismiss stage." (NYSCEF Doc No. 50, Opposition, at 23 [emphasis in original]; see CPLR 3211[g]; Great Wall Med. P.C., 74 Misc.3d 1224[A] at *2 [a motion to dismiss a SLAPP suit "must be granted … unless the party opposing the motion demonstrates … by clear and convincing evidence" that the publication at issue was made with actual malice]; Torres v Marrero, 2022 WL 3043398, at *5 [Sup Ct, NY County, Aug. 2, 2022] ["A plaintiff is now required to establish by 'clear and convincing evidence' that there is a substantial basis in fact and law for its claim"].)
Finally, because the article falls "under the ambit of the amended anti-SLAPP law, defendant is entitled to seek damages and attorneys' fees under Civil Rights Law §§ 70-a and 76-a(1)(a)(1)." (Aristocrat Plastic Surgery, P.C., 206 A.D.3d at 32.) Thus, it is hereby
ORDERED that Defendant William Cohan's motion sequence 003 for dismissal of the complaint is granted in its entirety, the complaint is dismissed against Defendant, with costs and disbursements, and the Clerk shall enter judgment accordingly; and it is further
ORDERED that within ten (10) days from the entry of this order, Defendant William Cohan shall file and serve on all parties an itemized bill fully detailing his actual costs and attorneys' fees associated with this action; the truthfulness and accuracy of which shall be affirmed by an attorney of said firm who is fully familiar with the facts and circumstances of the instant matter; and it is further
ORDERED that if Plaintiff disputes the accuracy or reasonableness of the costs and attorneys' fees incurred by Defendant William Cohan, within ten (10) days from service of the itemized bill referenced above, Plaintiff must file and serve on all parties a sworn statement setting forth his basis for disputing the accuracy or reasonableness of said costs and fees.
CHECK ONE: [ ] CASE DISPOSED [X] NON-FINAL DISPOSITION
[X] GRANTED [ ] DENIED [ ] GRANTED IN PART [ ] OTHER
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